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20 July 2009

Second Circuit hears arguments in Tiffany appeal

The US Court of Appeals for the Second Circuit has heard Tiffany's appeal against a New York district court's decision to dismiss the jewellery company's trademark infringement claims against eBay.

17 July 2009

Third Circuit throws music promoter under the boardwalk

In the latest instalment of the long-running battle between Faye Treadwell, the former manager of famous 1950s singing group The Drifters, and Larry Marshak, a music promoter, over the rights to use the trademark THE DRIFTERS, the US Court of Appeals for the Third Circuit has ruled in favour of Treadwell. The court found Marshak, his family members and business associates to be in contempt.

16 July 2009

SHINNECOCK decision affirmed on appeal

In In re Shinnecock Smoke Shop, the US Court of Appeals for the Federal Circuit has affirmed a decision of the TTAB in which the latter had refused to register the marks SHINNECOCK BRAND FULL FLAVOR and SHINNECOCK BRAND LIGHTS for cigarettes on the grounds that they falsely suggested a connection with a non-sponsoring entity.

08 July 2009

Removal of UPCs constitutes trademark infringement, says Second Circuit

The US Court of Appeals for the Second Circuit has upheld the district court’s grant of a preliminary injunction in a case in which the defendant had in its possession perfume in packaging having the unique production code removed. The decision shows that manipulation and mutilation of packaging can provide grounds for preliminary injunctive relief, even before a determination is reached as to the authenticity of the product.

07 July 2009

Secondary meaning not established by length of use alone, says court

In B & J Enterprises Ltd v Giordano, the US Court of Appeals for the Fourth Circuit has affirmed a grant of summary judgment against the plaintiff’s trademark infringement and cybersquatting claims in a case in which the plaintiff had waited 40 years to register its mark. Among other things, the court held that length of use alone is insufficient to establish secondary meaning.

02 July 2009

Unfixed design not ripe for declaratory judgment, says Fifth Circuit

In Vantage Trailers Inc v Beall Corp, the US Court of Appeals for the Fifth Circuit has affirmed the district court's dismissal of the case for lack of subject matter jurisdiction on the grounds that the declaratory judgment plaintiff did not have a substantially fixed and definite product design when it filed the action.

29 June 2009

Guidance provided to purchasers of marks consisting of a person’s name

In JA Apparel Corp v Abboud, the US Court of Appeals for the Second Circuit has provided guidance to purchasers of trademark rights consisting of a person’s name as to the scope of the agreement that would be necessary to preclude entirely any use of the name and purchased mark for a commercial purpose.

26 June 2009

Test for descriptiveness clarified in URBANHOUZING Case

In In re Carlson, in a precedential opinion, the TTAB has affirmed a refusal to register the mark URBANHOUZING for “real estate brokerage, real estate consultation and real estate listing” services under Section 2(e)(1) of the Lanham Act. The decision clarifies the tests for descriptiveness set out by the TTAB in the No Nonsense Fashions Case.

23 June 2009

Ninth Circuit confirms that ORGANIC FOOD BAR is generic

In Premier Nutrition Inc v Organic Food Bar Inc, the US Court of Appeals for the Ninth Circuit has confirmed that the term 'organic food bar' was generic. The court outlined its test for determining whether a term is generic, which focuses on how the term is understood by the consuming public.

22 June 2009

US court issues landmark parallel imports decision

A US court has ruled that unique product codes are protected under trademark law. It is a landmark decision in the fight against counterfeit and grey-market goods.

19 June 2009

White House announces new USPTO director

The White House has announced President Obama's intention to nominate the "eminently qualified" David Kappos as director of the United States Patent and Trademark Office.

18 June 2009

TTAB re-examines confusion criteria for word marks in Spanish

In Brown Shoe Co v Robbins, the TTAB has held that an application to register the word 'palomita' (Spanish for 'little dove') as a trademark for “shirts, pants, shoes and hats” was barred by two prior registrations for the word 'paloma' (Spanish for 'dove') for use in connection with clothing and footwear. The opinion also shows that proving fraudulent misuse of the ® symbol remains difficult.

17 June 2009

Eight-year delay bars claim that REDSKINS mark disparages Native Americans

In Pro Football Inc v Harjo, the US Court of Appeals for the District of Columbia Circuit has affirmed the lower court’s judgment in favour of Pro Football Inc on the grounds that laches barred the plaintiffs’ claim that Pro Football's REDSKINS mark should be cancelled. The decision demonstrates that evidence of investment in a mark can be afforded significant weight for the purposes of determining prejudice.

16 June 2009

Trademarks and tweets: brand protection on Twitter

With 6 million users each month, Twitter has soared into the internet big league. But a recent trademark infringement lawsuit filed against the social networking phenomenon has got brand owners talking (or, if you will, tweeting). WTR investigates whether Twitter poses a threat to IP rights and how brand owners should react to suspected infringement.

11 June 2009

TTAB re-designates Zanella v Nordstrom fraud decision as precedential

In an atypical move that will be welcomed by registrants, the TTAB has re-designated its October 2008 decision in Zanella Ltd v Nordstrom Inc from non-precedential to precedential. The issue in this case was whether fraud (or the filing of a factually incorrect application or affidavit) in the USPTO can be “cured” and the registration perfected after the trademark application matures into a registration.